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Reporting suspected harassment doesn’t always equal ‘Protected activity’

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in Discrimination and Harassment,Employment Law,Human Resources,Leaders & Managers,Performance Reviews

When an employee reports what he believes to be sexual harassment to supervisors, that’s ordinarily considered a “protected activity.” And, of course, it’s illegal for employers to punish those who engage in a protected activity.

The problem: Sometimes employees who are in trouble for poor performance try to protect themselves by reporting incidents that don’t come close to being harassment. They figure that their employer won’t fire or otherwise punish them for fear of a retaliation lawsuit.

But you can take heart: It’s not protected activity just because someone reports an incident. If—when viewed objectively—the conduct being reported seems far from harassment, reporting it isn’t protected, and the employee can’t charge retaliation.

Recent case: Timothy Van Portfliet, a sales manager for H&R Block Mortgage, learned that a subordinate had received a clumsy but suggestive comment from her manager. He reported the incident to HR. Soon after, Van Portfliet—who had some performance issues of his own before he reported the incident—was fired.

He sued, alleging retaliation for engaging in a protected activity, and a jury agreed.

But the company asked the trial court to reverse the jury’s decision. It argued that the comment that formed the basis of Van Portfliet’s report was not sexual harassment since it was a one-time incident and wasn’t severe or pervasive. The court agreed and overturned the jury decision. (Van Portfliet v. H&R Block, No. 8:05-CV-1474, MD FL, 2007)

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